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The Federal Highway Administration (FHWA) issued Guidance for Transportation Enhancement (TE) Activities on December 17, 1999. The original Guidance, available as a PDF Document [200 K], does not incorporate revisions or corrections.
FHWA periodically revises the Guidance (revisions are noted in the text). This version incorporates revisions through November 20, 2009. The National Transportation Enhancements Clearinghouse (NTEC) hosts a PDF version of this Guidance which incorporates revisions made through November 20, 2009.
Revisions in 2011:
Revisions in 2010:
Revisions in 2009:
Revisions in 2008:
Note: A project eligible for TE funding must meet Federal environmental, project administration, and right-of-way requirements. See Other Related FHWA Guidance and Information for more information.
Federal transportation policy, as reflected in the strategic goals of the U.S. Department of Transportation (DOT), the Federal Highway Administration (FHWA) and its Environmental Policy Statement, stress mobility; protection of the human and natural environment; and community preservation, sustainability, and livability. The achievement of these goals and objectives remains a high priority for the DOT and the FHWA.
Transportation Enhancement (TE) activities offer funding opportunities to help expand transportation choices and enhance the transportation experience through 12 eligible TE activities related to surface transportation, including pedestrian and bicycle infrastructure and safety programs, scenic and historic highway programs, landscaping and scenic beautification, historic preservation, and environmental mitigation. TE projects must relate to surface transportation and must qualify under one or more of the 12 eligible categories.
The TE activities are a subcomponent of the Surface Transportation Program (STP). The policy and procedural requirements that apply to the STP also apply to the provisions for funding and implementation of TE activities. The laws governing traditional Federal-aid projects funded under Chapter 1 of Title 23 U.S.C., such as the National Environmental Policy Act (NEPA) (see NEPA information on FHWA Project Development webpage) and related laws, apply to the TE activities as well, except where the Congress expressly provided additional streamlining provisions, innovative finance, and cost sharing provisions for the TE activities.
Through the TE activities, Congress provided innovative opportunities to enhance and contribute to the transportation system. This is being carried out in a non-traditional fashion through implementation of a specific list of TE activities. The focus of these actions is to improve the transportation experience in and through local communities. The FHWA seeks to broaden TE program participation, and the rates of implementation of transportation and community enhancing projects. Therefore, it is the policy of the FHWA to foster and encourage partnerships with State and local officials and public interest groups to improve the delivery of these valuable transportation enhancements. Where appropriate, public-private partnerships may also be encouraged.
The Intermodal Surface Transportation Efficiency Act (ISTEA) (1991) established the Transportation Enhancement (TE) activities, authorizing eligibility in 23 U.S.C. 133(b)(8), establishing funding in 23 U.S.C. 133(d), and defining the activities in 23 U.S.C. 101(a)(35). Section 1201 of the Transportation Equity Act for the 21st Century (TEA-21) (1998) amended 23 U.S.C. 101(a)(35), to include two additional TE activities. Section 1122 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (2005) amended §101(a)(35) to specifically list the eligible TE activities, with minor modifications, and Section 1113(c) of SAFETEA-LU amended funding levels. See Legislation.
This document provides guidance concerning the interpretation of the TE provisions and their implementation. The program management information replaces two guidance memorandums issued by the FHWA on April 24, 1992 (Transportation Enhancement Activities) and June 6, 1995 (Eligibility of Historic Preservation Work for Transportation Enhancement Funding). This guidance does not attempt to address all the possible questions that have been or could be raised concerning transportation enhancements. However, the guidance does provide further information concerning the thought process to apply in determining whether or not activities qualify for TE set-aside funds.
Much of this guidance focuses on the provisions related to TE activities as added to or amended by TEA-21. It also provides brief summaries of relevant information detailed in other related guidance memorandums. It does not seek to replace the guidance memo where the memo remains current and the information valid. This guidance also incorporates subsequent amendments based on SAFETEA-LU and other legislation, regulations, or guidance from other program areas. These changes are noted with the date for the revision.
Over the life of ISTEA (1992 through 1997), the FHWA had two basic requirements regarding eligibility determinations. First, the proposed TE activity must be one of the qualifying activities listed in the legislation. Secondly, the activity must have a connection to transportation. These two basic requirements were clarified under TEA-21 and SAFETEA-LU. This is discussed in the Project Linkage section.
From time to time, State DOTs will need to coordinate with the FHWA division office on specific eligibility determinations.
The list of qualifying TE activities provided in 23 U.S.C. 101(a)(35) is intended to be exclusive, not illustrative. That is, only those activities listed therein are eligible as TE activities. They are listed below. [This paragraph and the list below were revised on November 4, 2005]TE Activities Defined-
TE funds may be used for workforce development, training, and education under 23 U.S.C. 504(e), provided the activity specifically benefits eligible TE activities. See Transportation Enhancements Guidance Supplement - Workforce Development, Training, and Education.
Many projects are a mix of elements, some on the list and some not. Only those project elements which are on the list may be counted as TE activities. For example, a rest area might include a historic site purchased and developed as an interpretive site illustrating local history. The historic site purchase and development would qualify as a transportation enhancement activity.
Activities which are not explicitly on the list may qualify if they are an integral part of a larger qualifying activity. For example, if the rehabilitation of a historic railroad station required the construction of new drainage facilities, the entire project could be considered for TE funding. Similarly, environmental analysis, project planning, design, land acquisition, and construction enhancement activities are eligible for funding.
The funded activities must be accessible to the general public or targeted to a broad segment of the general public.
The Congress amended the definition of eligible TE activities in 23 U.S.C. 101(a)(35) both in TEA-21 and in SAFETEA-LU. The SAFETEA-LU amendment defined each category as separate and distinct from others. States are encouraged to allow for fair consideration of all eligible activities as defined in the legislation.
Congress included the language on transportation enhancements as a means of stimulating additional efforts to create an improved transportation environment and system, while making a contribution to the surrounding community. This is to be done through implementation of the specific activities listed in the legislation. Enhancement measures in the activities listed, which go beyond what is customarily provided as environmental mitigation, are considered as transportation enhancements. However, transportation enhancement activities might consist of activities not immediately connected to a nearby project being mitigated. States may not use TE funds to finance normal environmental mitigation work eligible under the regular federal-aid highway program. The process of determining which activities will be considered as normal mitigation and which will be considered TE activities may at times be difficult. The process will likely require close coordination between the State DOTs and their FHWA division offices on a case-by-case basis.
To comply with Federal guidelines for eligibility, there are two basic considerations.
The definition of TE activities includes the phrase,
Previous guidance issued on June 6, 1995 (Eligibility of Historic Preservation Work for Transportation Enhancement Funding) called for a direct link to surface transportation. That guidance was repealed in the FHWA Final TE Guidance, issued December 19, 1999. Congress provided that TE activities must "relate to surface transportation." This makes clear that TE projects are to have a relationship to surface transportation. This is a more flexible standard than the past. The nature of a proposed TE project's relationship to surface transportation should be discussed in the project proposal. For example, where runoff from an existing highway contaminates an adjacent water resource and a transportation enhancement activity is proposed to mitigate the pollution caused by the run off a clear highway or transportation relationship exists. Another example might involve the acquisition of a scenic easement. The acquisition would be in connection with the preservation of a scenic vista related to travel along a specific route. [First two sentences revised October 22, 2008]
Where a TE activity is for acquisition for scenic preservation purposes, and proposes to contribute to the visual experience of the traveler but is a substantial distance away with respect to a highway or transportation project, the TE activity must be determined to make a substantial contribution to the scenic viewshed.
Given the nature of the list of eligible activities, it is not necessary that each TE activity be associated with a specific surface transportation project to be eligible for funding. Examples which illustrate this include: the rehabilitation of a historic train structure; the provision of a bike or pedestrian path; or the establishment of a transportation museum.
Proximity to a highway or transportation facility alone is not sufficient to establish a relationship to surface transportation. Additional discussion, beyond proximity, is needed in the TE project proposal to establish the relationship to transportation. For example, an historic barn that happened to be adjacent to a particular highway facility would not automatically be considered eligible for TE funds simply because of its location; visibility to the traveler in a way that substantially enhances the traveling experience could qualify. Specific documentation of the enhanced experience is required. Conversely, a historic structure, such as the barn in the above example, could not be disqualified from consideration because it was not adjacent to a particular Federal-aid facility, as long as some other relationship to surface transportation could be established.
It is not necessary to have a TE activity function as an active transportation facility, either past or current, to qualify as an eligible TE activity. For example, a scenic or historic site may have a relationship to transportation but not function as a transportation facility.
Once a relationship to surface transportation is established, TE activities can be implemented in a number of ways. For example, they can be developed as parts of larger joint development projects, or as stand-alone projects.
Where questions arise, close coordination with the FHWA division office within each State will assist in the determination of a project's relationship to surface transportation.
Surface transportation means all elements of the intermodal transportation system, exclusive of aviation. For the purposes of TE eligibility, surface transportation includes water as surface transportation and includes as eligible activities related features such as canals, lighthouses, and docks or piers connecting to ferry operations, as long as the proposed enhancement otherwise meets the basic eligibility criteria.
Section 133(c) of Title 23 U.S.C. includes a general limitation that STP projects not be funded on "roads functionally classified as local or rural minor collectors, unless such roads are on a Federal-aid highway system on January 1, 1991, except as approved by the Secretary." Given the nature of many of the 12 TE categories, it is clear that the location limitation of Section 133(c) cannot apply to them. Thus, on October 25, 1999, the Secretary approved the FHWA's request for an exception in the law that would allow States more flexibility in determining where they can use their TE funds. With the Secretary excepting TEs from the general STP location restriction of § 133(c), the FHWA can now administer TE projects in a manner more consistent with the purpose of the TEs. See Request for Approval of Exceptions. [link added October 22, 2008]
A number of streamlining measures are available to deliver TE projects. Measures 1-8 were in the Final Guidance on Transportation Enhancement Activities, issued on December 17, 1999. Measures 9-13 were added for further clarification in March 2004, and links were added to pertinent policy documents and legal citations. Measures 7 and 8 were revised July 2, 2008, to incorporate Memos issued on June 26, 2008. Measure 14 was added in October 2010.
Categorical Exclusions: Except in unusual circumstances, a TE project may be processed as a categorical exclusion (CE) under the National Environmental Policy Act. The project then does not have to be processed using an environment impact statement (23 U.S.C. 133(e)(5)(A)). See the CE list at 23 CFR 771.117. [Revised July 2, 2007]
Section 4(f): Except for unusual circumstances, TE projects are not normally required to undergo a Section 4(f) evaluation (FHWA memo of August 22, 1994).
Historic Preservation/Section 106: TE projects are subject to Section 106 of the National Historic Preservation Act. However, the use of a Nationwide Programmatic Agreement can streamline the historic preservation coordination requirements (FHWA memo of June 11, 1997).
Advance Payment Option: TE Program funds may be advanced, on a limited basis to a local government through the advanced payment option (23 U.S.C. 133(e)(3)(B)).
Federal Share up to 100%: States have the option to fund individual projects up to 100 percent of the cost of the TE activity provided that on an annual basis, TE projects, as a group, comply with the Federal Share requirement (23 U.S.C. 133(e)(5)(C)).
Donations and Credits: States may allow consideration of the value of services as part of the non-Federal share (23 U.S.C. 323(c)).
Federal Bidding Procedures: TE projects not located within the highway right-of-way may make necessary procurements using State procedures and do not need to follow Federal bidding procedures (FHWA memo of November 12, 1996). See also Procurement of Federal-aid Construction Projects (June 26, 2008). This memorandum consolidates FHWA's guidance and policies on procurement requirements for the Federal-aid highway program.
Davis-Bacon/Prevailing rate of wage: The Davis-Bacon prevailing wage applies to TE projects greater than $2,000. However, Davis-Bacon requirements do not apply to TE projects located outside the highway right-of-way (FHWA memo of July 28, 1994). See also Applicability of Prevailing Wage Rate Requirements to Federal-aid Construction Projects (June 26, 2008). This memorandum consolidates FHWA's guidance and policies concerning the applicability of the prevailing wage rate requirements (Davis-Bacon Act) for the Federal-aid highway program.
Funds from Other Federal Agencies: Funds from other Federal agencies and the value of other contributions may be credited toward the non-Federal share of the costs of a project to carry out a transportation enhancement activity (23 U.S.C. 133(e)(5)(C)(ii)(I)).
Non-Federal Share Calculation: The non-Federal share for a project may be calculated on a project, multiple-project, or program basis (23 U.S.C. 133(e)(5)(C)(ii)(II and III)).
Project Location: TE projects do not have to be located within a highway right-of-way (FHWA exception memo approved by the Secretary of Transportation on October 25, 1999).
States Assume Programmatic Responsibilities: States shall assume the same programmatic responsibilities for design, plans, specifications, estimates, contract awards, and inspection of projects as they do for non-NHS projects (23 U.S.C. 106(c)(2)).
Stewardship and Oversight: States may assume other stewardship and oversight flexibilities available for the Federal-aid highway program. (See FHWA's Stewardship/Oversight Task Force).
FHWA Order 6640.1A: FHWA Policy on Permissible Project Related Activities During the NEPA Process: This Order clarifies the Federal Highway Administration's (FHWA) policy regarding the permissible project-related activities that may be advanced prior to the conclusion of the National Environmental Policy Act (NEPA) process. (See: FHWA Order 6640.1A / October 8, 2010)
This section was revised January 11, 2007, to:
The Federal share for Transportation Enhancement projects is the same as the Surface Transportation Program, as provided in 23 U.S.C. 120(b). In general, the Federal share is 80 percent, with a 20 percent State and/or local match. This maximum share is adjusted for States with large proportions of Federal lands: see Sliding Scale Rates In Public Land States.
Title 23 provides some additional flexibility for the Federal share for TE projects. Section 133(e)(5) allows a State to use TE funds for up to 100 percent of the cost of individual projects without a corresponding match. However, for a fiscal year, the ratio of Federal funds to State match for all TE funded projects must comply with the maximum Federal share provisions in 23 U.S.C. 120(b). This amendment also provides some additional innovative features.Legislative language (23 U.S.C. 133(e)(5)):
These provisions only apply to eligible TE activities funded from TE set-aside funds under 23 U.S.C. 133(d)(2), and not for other "TE-like" projects using other Federal-aid funds.
Other sections of Title 23 allow some other Federal and U.S. DOT funds to match TE funds:
This section was extracted from the Matching Funds section on January 11, 2007, to: [Revised March 12, 2009]
Title 23 §323 allows the fair market value of donated land that is acquired for a Federal-aid project, and allows credit for donations of funds, materials, or services.
Costs for services incurred prior to project authorization (obligation in FHWA's Fiscal Management Information System) are not allowable.
Section 323(a) and (b) allow the fair market value of land acquired or newly incorporated into a project to be credited as a donation toward a Federal-aid project (with restrictions, such as lawfully obtained, not subject to 23 U.S.C. 138 [Section 4(f)], etc.). However, §323 does not allow a credit for land transferred from an agency of the Federal government.
Section 323(c) [as amended in SAFETEA-LU] states: Credit for Donations of Funds, Materials, or Services.-Nothing in this title or any other law shall prevent a person from offering to donate funds, materials, or services or a local government from offering to donate funds, materials, or services performed by local government employees, in connection with a project eligible for assistance under this title. In the case of such a project with respect to which the Federal Government and the State share in paying the cost, any donated funds, or the fair market value of any donated materials or services, that are accepted and incorporated into the project by the State transportation department shall be credited against the State share. [Note: SAFETEA-LU amended §323(c) to incorporate references to local governments, and eliminated §323(e).]
Section 323 allows:
See also: FHWA Order 6640.1A: FHWA Policy on Permissible Project Related Activities During the NEPA Process. This Order clarifies the Federal Highway Administration's (FHWA) policy regarding the permissible project-related activities that may be advanced prior to the conclusion of the National Environmental Policy Act (NEPA) process. [Added October 8, 2010]
Donation credit may be allowed provided that appropriate documentation supporting expenditures would be available for review as needed by the FHWA. Only the value of expenses determined to be reasonable, in coordination with the FHWA division office, will be allowed toward the local match. See additional information in applicable OMB Circulars:
In accordance with the provisions of 23 U.S.C. 120(j), a State may use toll revenues that are generated and used by public, quasi-public, and private agencies to build, improve, or maintain highways, bridges, or tunnels that serve the public purpose of interstate commerce as a credit toward the non-Federal share. Credit amounts are approved by FHWA and maintained by the State DOT. Establishment and use of toll credits is governed by separate implementing guidance. (See August 7, 1998 memorandum - Toll Credit for Non-Federal Share, Section 1111(c) of TEA-21, Implementing Guidance). See additional information at www.fhwa.dot.gov/ipd/finance/default.aspx.
Some States allow the value of volunteer time for labor or services donated toward a project to be credited toward the project match. Each State that allows volunteer donations should establish procedures to determine the value of volunteer time. The value of volunteer time should be consistent with the guidelines published by the nonprofit organization Independent Sector at http://www.independentsector.org/programs/research/volunteer_time.html.
Specialized Skills. The value of volunteer time for specialized skills or professional services (for example, real estate or legal services donated toward a project) may be valued at a reasonable value for those specialized skills or professional services. These rates are published by the Bureau of Labor Statistics at http://www.bls.gov/bls/blswage.htm.
However, Independent Sector notes: "It is important to remember that when a doctor, lawyer, craftsman, or anyone with a specialized skill volunteers, the value of his or her work is based on his or her volunteer work, not his or her earning power. In other words, volunteers must be performing their special skill as volunteer work. If a doctor is painting a fence or a lawyer is sorting groceries, he or she is not performing his or her specialized skill for the nonprofit, and their volunteer hour value would not be higher."
This section was revised January 11, 2007, to add hyperlinks and make minor text corrections.
Section 133(e)(3)(B) of Title 23 provides for an advance payment option for TE activities when necessary to make prompt payments for project costs. Because the Cash Management Improvement Act governs payments to States, this advance payment option is only available to local governments through the State DOT. The following procedures apply:
Historical Note: Section 316 of the National Highway System Designation Act of 1995 codified the Advance Payment Option in 23 U.S.C. 133(e)(3)(B). The original text included at the end of §133(e)(3)(B)(i): "if the Secretary certifies for the fiscal year that the State has authorized and uses a process for the selection of transportation enhancement projects that involves representatives of affected public entities, and private citizens, with expertise related to transportation enhancement activities." Section 1108(b)(2)(A) of TEA-21 removed this text. However, public involvement requirements continue under the metropolitan and statewide planning processes.
This section was revised January 25, 2007 to:
The "Uniform Transferability of Federal-aid Highway Funds" provision in 23 U.S.C. 126 permits transfers among highway program categories apportioned under 23 U.S.C. 104 and 144. Section 126(b) limits the transfer of TE set-aside funds for use on other highway program activities. The maximum amount that a State may transfer of the State's set-aside under 23 U.S.C.133(d)(2) for a fiscal year, may not exceed 25 percent of (1) the amount of the set-aside, less (2) the amount of the State's set-aside for TE funding for fiscal year 1997. For example: State "A's" set-aside for TE in FY 1999 is $2 million. In FY 1997 it was $1.8 million. Therefore, State "A" may transfer up to $50,000 out of TE for use on other types of highway program activities.
The funding for TE activities primarily comes from the set-aside of 10 percent of STP funds for activities listed in 23 U.S.C. 101(a)(35). Therefore, the transferability of these funds must be consistent with the rules that apply to the STP. The transfer of TE funds must include consideration of the purposes of the set-aside and the categories of activities for which the funds are limited. TE funds may be transferred only to:
Historical note: TEA-21 established two sections as §110: "Uniform Transferability of Federal-aid Highway Funds" and "Revenue Aligned Budget Authority". In 1999, Pub. L. 106-159 renumbered the Uniform Transferability provision from §110 to §126. SAFETEA-LU inserted "under" prior to "Section 104(b)(3)".
The metropolitan and statewide planning processes should occupy a central role in identifying, planning, and funding TE activities. The planning processes are the appropriate mechanisms for determining funding priorities among competing TE activities, including those not part of larger transportation projects. The FHWA field offices should encourage the State and metropolitan planning organizations (MPOs) to seek out and fully integrate TE activities into both their plan development and programming processes. TE activities must be included in the appropriate metropolitan and statewide transportation improvement programs. See also:
Public involvement is an integral part of the Federal-aid planning, programming, and project implementation processes. While there are no specific public involvement requirements for TE activities, the metropolitan and statewide transportation planning processes have general requirements for public involvement and participation, as does the project development process under the National Environmental Policy Act (NEPA).
The State public involvement process may provide specific guidance or suggested techniques to solicit and select TE projects. The State's TE process should include methods to foster effective communication, information gathering, and feedback. The State should encourage as part of its TE program representation from State, regional, and/or local agencies, Federal and tribal agencies, organizations with interests related to the TE activities, and ensure that people from various social and economic backgrounds can benefit from the TE activities. Some States use statewide advisory committees to develop broad policies or to assist in the project selection process.
States should encourage effective public involvement in guidance, correspondence, brochures, websites, and information given to potential project sponsors. States may consider how project sponsors manage public involvement as part of their TE project evaluation process.
FHWA has additional information available on public involvement and related topics:
Building on the work done in the planning processes, State DOTs, MPOs, and FHWA field offices have a responsibility to actively pursue TE opportunities during the development of individual transportation projects. Accordingly, future environmental approvals should specifically take into consideration the potential for implementing transportation enhancement activities as part of these overall projects. During their involvement in these projects, FHWA field offices should promote TE activities as a means to more creatively integrate transportation facilities into their surrounding communities and the natural environment.
When appropriate, TE activities may be developed in cooperation with other State and local agencies and with private entities. However, the State DOT or other eligible transportation agency shall remain responsible to the FHWA for the project. Furthermore, TE activities, including stand-alone TE projects, must comply with all applicable environmental and other Federal requirements. Even though the express purpose of the project is to enhance an element of the natural, cultural, or human environment, the impacts of the proposed action must be assessed to assure compliance with Federal and State requirements.
The main source of TE funds is the 10% set aside of STP funds. In addition, funds from the Minimum Guarantee (1998 to 2004) and Equity Bonus (2005 to 2009) allocation to the STP pool of funds add to the totals available for transportation enhancement activities. These adjustments are added to the total STP pool prior to the State apportionment and are therefore already a part of the STP totals. See Transportation Enhancement Activities Apportionments, Rescissions, and Obligations for more information.
The FHWA Office of Budget and Finance has established appropriation code Q22 [Q220] (1998 to 2003), H22 [H220] (2004, 2005) and L220 (2005 to 2009) for TE activities and notified each State of the fiscal year's STP suballocation amounts available only for TE activities. While 10 percent of each year's STP apportionment may be obligated only for TE activities, the actual obligation can occur in a subsequent year. For example, if State "A" receives $100 million in STP apportionments in FY 2000, then $10 million must be reserved for TE and cannot be used for any other purpose unless transferred to another program. However, the State may chose to obligate only $8 million for TE in FY 2000, reserving $2 million for TE obligations in subsequent years. The statute does not require that 10 percent of the funds for any given project be devoted to TE activities.
There is no requirement that STP funds used for TE activities be limited to only 10 percent. If a State chooses, STP funds beyond the 10 percent set-aside are eligible for use on TE activities.
23 U.S.C. 133(d)(2) specifies that the 10 percent of STP funds for TE activities are separate from the STP funds which are sub-allocated to the larger metropolitan areas and to other areas of the State. Accordingly, while the STP sub-State allocation funds can be used for transportation enhancement activities, any such use would not count toward the 10 percent requirement. Under the transferability provisions, States may transfer funds into the STP State flexible account. It should be noted that funds transferred into that account are not subject to the 10 percent set-aside for TE.
States should maintain records on: (1) the amounts obligated for TE activities using the STP TE appropriation code (counting toward the 10 percent requirement) and other STP funds (not counting toward the 10 percent requirement) or other non-STP funds, and (2) how obligations for TE activities are distributed among the 12 qualifying activities. A brief description of each specific TE action for which STP funds have been obligated is useful. [Paragraph revised October 22, 2008]
States have adopted a variety of processes for determining how to use the TE set-aside funds. Some States use numerical point-based systems. [Paragraph revised October 22, 2008]
In accordance with the above guidance on eligibility, a project must first be shown to be one or more of the 12 activities identified in the legislation. It must then meet the test of a having a relationship to surface transportation in order to be considered for funding. Any additional State criteria must also be satisfied. States are permitted to have additional criteria if they choose, or may have weighting systems of their own design.
TE funds are generally not to be used for the operation and/or long term maintenance of eligible TE activities. The exception to this provision is the TE activity category defined in legislation as Rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals). A State may choose to participate in the operations of such facilities. Consistent with Section 101 of Title 23, the term operating costs is defined to mean all reasonable costs for the facility to function. These costs may include administrative costs, costs of utilities and rent, and other costs associated with the continuous operations of the facility. The determination of what constitutes reasonable costs should be by agreement between the State and the FHWA division office.
Under the provision of 23 U.S.C. 116, a State must maintain a project constructed with Federal-aid funds. Because of this provision, we encourage States to develop a plan of maintenance for TE eligible activities. Strategies for the upkeep and maintenance of the public investment should be considered at the time of the TE proposal.
For information on Maintenance vs Major Reconstruction, see Q&A #35. [Added February 25, 2004]
It is recognized that the States and FHWA field offices have been operating in good faith based on the general guidance that FHWA has issued on transportation enhancements. A number of States had published State guidance documents and had calls for projects under the provisions of ISTEA or TEA-21. To minimize the potential for reversing funding determinations, this program guidance will not apply retroactively to projects for which the State DOT had already notified project sponsors of a decision to fund the proposed work. However, all other projects should be developed consistent with the policy guidance provided in this package. [Paragraph revised October 22, 2008]
The "provision of safety and educational activities for pedestrians and bicyclists" includes non-construction safety-related activities and the reasonable costs to provide safety and educational activities such as bike/pedestrian safety training, cost of facilitators and classes. It may also include related training materials such as brochures, videotapes, other training aids, as well as rent for leased space and limited staff salaries. Long term salary participation should be avoided. TE proposals should be written to reflect a definitive period for participation.
The funded activities must be accessible to the general public or targeted to a broad segment of the general public. The activities must show a relationship to the surface transportation system, and as with all bicycle and pedestrian activities under the STP, bike and pedestrian projects using TE funds need not be located on a Federal-aid highway and may be non-construction activities.
Project sponsors using TE funds are encouraged to integrate safety messages and educational opportunities for bicyclists and pedestrians into enhancement projects through the development of campaigns, programs, educational materials including maps and brochures, and pedestrian and bicycle enforcement activities. Project sponsors are encouraged to coordinate these activities with the National Highway Traffic Safety Administration and other modal administrations. This TE activity is not intended to replace or duplicate existing funding opportunities under 23 U.S.C. 402 for bicycle and pedestrian activities currently available through the State and Community Traffic Safety Program.
ISTEA listed scenic or historic highway programs as an eligible TE activity. TEA-21 introduced the parenthetical "including the provision of tourist and welcome centers" and attached it to the scenic and historic highway programs activity. Although linked with scenic and historic highway programs, the eligibility for tourist and welcome centers warrants further discussion as a separate activity. Congress provided additional language to assist in interpreting its intent regarding this activity. The Conference Report language notes:
"In order to be eligible under the enhancement program, the tourist or welcome center (whether a new facility or existing facility) does not have to be on a designated scenic or historic byway, but there must be a clear link to scenic or historical sites."
The connection to a scenic site should take into account the intrinsic characteristics that make an area or site scenic as determined by a State or area commission, where one exists. Where these mechanisms are not available, the proposal should document those characteristics that give evidence of compliance with the provisions of the Conference Report language. While a tourist or welcome center does not have to be on a designated scenic or historic byway, many of the characteristics that determine what is scenic are similar to those of the scenic byways program. Activities eligible under the National Scenic Byways Program are generally eligible under TE activities. A historic site should have evidence of documented consultation and concurrence with the State Historic Preservation Officer or similar authority for determining the historicity of a particular site.
The eligibility for TE funding for the provision of tourist and welcome centers applies to both existing and new centers. This means that TE funds may be used for the construction of a new facility and/or the restoration of an existing facility. This would include those related construction actions necessary to provide the facility, such as interior fixtures and parking areas. TE funds can be used to purchase and install items which support or interpret the scenic or historic highway program or site including brochure racks for interpretive materials or maps or kiosks. TE funds cannot be used for statewide programs, marketing, or promotion not related to the scenic or historic highway program. TE funds cannot be used for staffing, operating costs, or maintenance. TE funds should not be used to purchase items such as racks for advertising or brochures for local or national businesses.
The intent is not to use the category to simply repair and restore what are clearly rest areas. The intent is to fund those activities clearly linked to scenic or historic programs or scenic or historic sites.
The tourist or welcome center does not have to be immediately adjacent to an existing Federal-aid highway. However, where it is determined that a proposed tourist or welcome center would not be in connection with a particular Federal-aid highway, the requirement to demonstrate a relationship to surface transportation must still be taken into consideration. Additionally, evidence of a connection to a scenic or historic site must be established. An example could include efforts and materials to direct members of the traveling public to a specific local area site deemed to be of scenic or historic significance. The visitor or welcome center should be publicly owned and open to the public. Proposals for privately owned facilities to be used for a welcome or tourist center, and leased to a public entity, should be reviewed by the FHWA division office on a case-by-case basis.
TEA-21 expanded the category under transportation enhancements that addresses environmental mitigation for water pollution due to highway runoff and added measures to reduce vehicle-caused wildlife mortality while maintaining habitat connectivity. These activities can be either stand-alone projects or part of a larger existing or proposed project under the TE activities as long as such activity is related to surface transportation. Transportation enhancements are a means of promoting additional efforts, projects, and activities which relate to transportation but go beyond what is considered ordinary environmental mitigation for a project. As part of the NEPA process, all Federal-aid transportation projects are required to provide environmental mitigation based on their impacts. Mitigation efforts include measures to avoid and minimize impacts. Where impacts are unavoidable, compensatory mitigation is provided. The TE program was created to expand on this concept. However, TE projects are not to replace mitigation currently eligible or required under regular Federal-aid funded projects. TE funds should be used to rectify current or prior impacts from transportation facilities. Examples of such projects for the area of water quality improvement in this category of TE funding include: [Paragraph revised October 22, 2008]
This category in the TE program also addresses activities for the reduction of vehicle-caused wildlife mortality while maintaining habitat connectivity. This funding category is not limited to threatened and endangered species, but includes any wildlife mortality directly caused by vehicles. It will be up to the States to recognize and develop a statement of purpose and need for such projects. This determination will vary from State to State. The criteria used to determine a need for a wildlife crossing or control project in a specific location are determined by the States based on migration patterns, habitat use and distribution, and crossing characteristics of the wildlife through data collection on safety of motorists, habitat fragmentation, and wildlife mortality.
Examples of projects eligible for funding in this TE category include:
If a direct measure to reduce wildlife mortality at a highway crossing area is determined to be unfeasible (i.e., too expensive, geologically impossible, or unsafe for motorists), it might be possible to provide for the loss of wildlife due to vehicle collisions by developing new habitat resources, or improving existing habitat resources to support additional population numbers. The results could be deemed to be reducing the effects of the highway-related mortality on the long term population stability or public use benefits of wildlife. When considering this approach coordination with appropriate wildlife management agencies must be initiated. The decision to undertake this approach should be made in cooperation with and approved by the FHWA division office.
TEA-21 required the U.S. DOT to encourage the use of youth conservation or service corps to perform appropriate TE activities. Although this provision was not repeated in SAFETEA-LU, it was not repealed, and it remains in effect. [Paragraph revised October 22, 2008]
Legislation: TEA-21 §1108(g):
(g) ENCOURAGEMENT OF USE OF YOUTH CONSERVATION OR SERVICE CORPS. -The Secretary shall encourage the States to enter into contracts and cooperative agreements with qualified youth conservation or service corps to perform appropriate transportation enhancement activities under Chapter 1 of Title 23, United States Code.
The definition of a qualified youth conservation or service corps is taken from 42 U.S.C. Sec. 12572, and 42 U.S.C. Sec. 12656.
Details describing the definitions and programs identified under the sections listed above are provided in the attached Appendix.
Service corps and youth conservation corps organizations have effectively worked with States, local governments, and communities to assist in transportation enhancement projects. The FHWA has tracked many of these efforts and will be working with our division offices to encourage States to consider agreements with these organizations for enhancement activities where appropriate. Corps organizations often are able to recruit, hire, train, and provide opportunities for economically and/or educationally disadvantaged young people.
Where States and local officials are able to identify opportunities to enter into partnerships with these service organizations, they should fully consider the benefits to their own efforts and the benefits to the youth involved.
Transportation Museums established using TE funds must meet the following definition of a museum. The facility must; (1) be a legally organized not-for-profit institution or part of a not-for-profit institution or government-entity; (2) be essentially educational in nature; (3) have a formally stated mission; (4) have one full-time paid professional staff member who has museum knowledge and experience and is delegated authority and allocated financial resources sufficient to operate the museum effectively; (5) present regularly scheduled programs and exhibits that use and interpret objects for the public according to accepted standards; (6) have a formal and appropriate program of documentation, care, and use of collections and /or tangible objects; and (7) have a formal and appropriate program of presentations and maintenance of exhibits.
Establishment of transportation museums is interpreted to mean funding of capital improvements. The funds are not intended to reconstruct, refurbish, or rehabilitate existing museums, nor portions of museums, that are not for transportation purposes. It does not cover operations or maintenance of the facility. The museum must be related to surface transportation. Establishment of transportation museums is interpreted to include the costs of the structure and the purchase of artifacts necessary for the creation and operation of the facility. Displays, segments of buildings, or objects not directly related to transportation should not be funded with TE funds. TE funds may be used to build a new facility, add on a transportation wing to an existing facility, or convert an existing building for use as a transportation museum.
The museum must be open to the public and run by a public, non-profit or not-for-profit organization meeting the definition of museums stated above in this section. If entrance fees are charged for the museum a portion of the fee should be provided for the long term maintenance and operation of the facility.
The legislation governing the TE program specifically refers to TE activities "relating to surface transportation." Therefore, TE funds are not to be used to preserve aircraft or create an airport or air museum. Objects or structures related to aviation are not normally eligible for TE funds. Landscaping and other eligible TE activities may be appropriate for consideration for the road leading to an aviation facility.
See also Real Estate Guidance in the Appendices.
Real estate and property management issues must be addressed in many of the proposed TE activities. Several of the TE activities may involve property acquisition, restoration and rehabilitation of structures, and lease agreements. The purpose and the need for the acquisition should be clearly documented.
Acquisition of real property for TE projects is subject to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 regarding acquisition procedures and relocation assistance. An agency or qualified organization without the power of eminent domain is subject to the limited requirements set forth in 49 CFR 24.101(b).
The regulation at 23 CFR 1.23(a) provides that "The State shall acquire rights-of-way of such nature and extent as are adequate for the construction, operation and maintenance of a project." The regulation at 23 CFR 710.201(e), provides that "The real property interest acquired for all Federal-aid projects funded pursuant to title 23 of the United States Code shall be adequate for the construction, operation, and maintenance of the resulting facility and for the protection of both the facility and the traveling public." Consequently, when acquiring property interests for TE projects, States and Divisions should exercise caution and obtain fee title or a permanent easement unless there are compelling reasons or substantial cost or time savings in obtaining some other interest.
In those rare or unusual instances, it may be reasonable to acquire less than fee title or a less than permanent easement. In cases where the right-of-way interest is not in perpetuity, there should be a careful evaluation to guarantee control of the property for the expected life of the facility or to ensure, at a minimum, that the facility can be expected to function as intended. Adequate legal instruments could be a license agreement, lease, covenant, or other document to allow the facility to operate or function for a specified period of time based on its typical useful life or other reasonable prescribed time based on the investment.
There may be some projects, such as shared use paths, where land is owned or controlled by another governmental agency other than the project sponsor. In these cases, an interagency agreement to allow construction, operation, and maintenance of the facility may be an acceptable interest. Another example would be a utility or other entity that would be willing to grant a license to construct a facility, provided the utility would retain the right to use the land if needed for its operations. In those situations, provisions should be included to have the facility reconstructed or relocated to continue serving the same need, or alternatively to repay the Federal funds. In some instances, it may be appropriate to provide for the partial recovery of Federal funds if the facility does not fulfill its full useful life. An example would be a 20 year preservation agreement that would no longer be functional after 15 years due to unforeseen circumstances. The agreement between the State Highway Agency and the project sponsor should provide for either the full return of the Federal funds used, or some pro-rata portion based on the time elapsed. This agreement should be included in the Federal-Aid Project Agreement by reference. The conveyance document (deed, easement, permit, etc.) should specify the agreed upon recapture of the Federal investment. See the Guiding Principles and Questions for TE Activities for more information.
Property management issues to consider for TE projects include:
The project agreement should clearly state the purpose of the project and outline how the property will be used and maintained in the future. The agreement should include any conditions and requirements for repayment of Federal funds.
It is important that the applicant discuss how and for what purposes the property will be used following the rehabilitation. Where properties are to be leased with the income going to the applicant, a portion of the proceeds should go toward the future maintenance of the structure, and should account for reserve funds for replacements.
Where the primary purpose of the project is to enhance a historic transportation facility, coordination with the appropriate historic agencies can help to ensure that protective language is included in any agreement before the project is authorized for Federal funding.
Prospective applicants such as conservation groups or individuals should have a public co-sponsor to ensure that there will be continued responsibility on the part of a public agency for the project. Measures to maintain the public investment over time should be considered and should be included in project proposals and/or agreements.
The general rule of thumb for significant Federal-aid investments is that the public interest in and access to the activity should be in perpetuity. However, the extent of real property interest needed for the protection of the public interest in the expenditure of TE funds is somewhat dependent on the nature and magnitude of the expenditure. For example, if the project were simply to provide a gravel parking lot to be used to enhance a transportation use on lands under State ownership, a limited property use agreement would be sufficient. An expenditure of $5,000 for a gravel parking lot with an agreement that the lot would be retained in that use for 5 to 7 years might be reasonable.
The expenditure of $1,000,000 to rehabilitate a historic train station should require a much longer time period to amortize the public investment. The project agreement should specify a commitment to preserve the building, maintain the historic integrity, and sustain the planned use for which the TE award was granted. Major expenditures warrant that consideration be given to how the property will be maintained following the investment of TE funds, and what will be the source of financial resources for necessary repair, renewal, and rehabilitation. The agreement or conveyance document should provide for the recapture of the Federal investment if the property is converted to another use or purpose. Whenever buildings are involved, they should be insured and a provision made to reimburse the amount of Federal funding from the proceeds if the building is sold or destroyed. (See 23 CFR 710.201(e) and 49 CFR 18.31(c)).
Protection of property rights for the continued use of a facility, or for use over a specified period of time should be captured in the form of a legal document which can be recorded in the land records. These types of property reservations could be leases, easements, or other evidence of a property interest recognized in the State in which the TE funds are to be used.
Reversionary clauses may be appropriate in some instances where the property is originally obtained at no cost from a Federal agency through a Federal land transfer. These clauses would assure that where the property is no longer needed for the purpose for which it was transferred it would be offered for return to the original owner.
TE projects can involve real property, funds, materials, or services provided by units of local government and private entities. A donation of this type may be eligible for a credit to the matching share. To be eligible for a credit, the real property may not be part of a current transportation facility (23 CFR 710.507(c)).The fair market value of the real property, materials, or services may be credited against the non-federal share of the project. See also the Donations section of this Guidance, Q&A #10, Q&A #11, and Donations and Credits under the Uniform Act: Questions and Answers.
State DOTs should include procedures in the Right of Way manual to inventory and monitor projects that utilize Federal funds to ensure continued use of the property for the approved activity or for the repayment of the Federal funds as appropriate.
Title VI provisions of 49 CFR 21 should be included in any leases or agreements.
This guidance supplement incorporates an amendment to the TE eligible activities as enacted in SAFETEA-LU on August 10, 2005. [Revised December 6, 2005]
The category Inventory, Control, and Removal of Outdoor Advertising helps States control and remove billboards and other outdoor advertising. The Conference Report for SAFETEA-LU stated that the addition of "inventory" is a clarification that inventory for outdoor advertising is currently and shall continue to be an eligible activity. It also stated:
Inventory control may include, but not be limited to, data collection, acquisition and maintenance of digital aerial photography, video logging, scanning and imaging of data, developing and maintaining an inventory and control database, and hiring of outside legal counsel.
FHWA encourages multiple year planning for inventory, control, and removal of outdoor advertising, however, funding requests should be limited to a single year.
A project for inventory, control, or removal of outdoor advertising must be within the confines of a project as is required for other types of TE projects. This information includes, but is not limited to, project termini, list of the locations, number and type of signs, sign company or owners, and a cost estimate for removal.
FHWA participation in inventory, control, and removal of outdoor advertising will be limited to functions required for effective inventory and control, as well as not duplicating existing State DOT internal resources. FHWA will consider practices in other States of a similar program size, and the National Association of Highway Beautification Agencies (NAHBA) website surveys submitted by States to make a judgment for stewardship purposes of reasonable and necessary expenditure of Federal funds. FHWA cannot make duplicate payments for the same or similar deliverables. States or project sponsors must provide a detailed breakdown of costs to ensure there is no duplication of effort within this project or a State's program as a whole.
Outside legal counsel, if reasonable and necessary, may be hired to remove illegal signs. However, the State must make a reasonable attempt to recoup the cost of the removal of illegal signs from the property owner before seeking Federal reimbursement. When retaining outside services, the State DOT must follow accepted consultant selection practices for projects using Federal-aid highway funds in accordance with 23 U.S.C. 112.
Removal of Illegal Signs
Federal regulations in 23 CFR 750.705(d), (h), (i), and (j) require States to remove illegal signs expeditiously; to develop laws, regulations, and procedures to accomplish these requirements; to establish enforcement procedures sufficient to discover illegally erected or maintained signs shortly after such occurrence to cause their prompt removal; and to submit regulations and enforcement procedures to the FHWA for approval.
Section 1046(b) of the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 amended 23 U.S.C. 131(r) to state:
The above provision ties into 23 CFR 750.305(b), which itemizes nonparticipating costs and states that Federal funds may not participate when the sign owner reimburses the State for sign removal costs. Further, the State must make a reasonable attempt to recoup the cost of the removal of illegal signs from the property owner before seeking Federal reimbursement.
Furthermore, 23 CFR 750.304 requires the States to write Outdoor Advertising Control (OAC) Policies and Operating Procedures, and submit the document to FHWA for approval. The document should include the State DOT's procedures and identify situations when coordination between the State's OAC office and other State DOT staff is necessary. This information should be incorporated into the State Right-of-Way Manual.
FHWA must ensure compliance with the Federal regulations; the April 14, 1972, State/Federal Agreement for carrying out National Policy relative to control of outdoor advertising; Transportation Enhancement Guidance; accounting principles; and stewardship and oversight responsibilities to ensure fiscal responsibility for efficient use of Federal funds.
TE funds may be used at 100 percent Federal share for direct educational expenses for surface transportation workforce development, training, and education under 23 U.S.C. 504(e), provided the activity specifically benefits eligible TE activities. TE funds may be used for surface transportation workforce development, training, and education such as:
TE funds cannot be used for the ongoing administrative or operating expenses for a State's TE program, for consultants to help administer the State's program, or to conduct general training on administering the TE program. However, TE funds may be used for direct costs (training costs, conference and registration fees, travel costs) related to surface transportation workforce development, training, and education benefiting the TE program, including attendance at conferences and training related to the TE program. Salary costs are not eligible under 23 U.S.C. 504(e)(1)(A), but see Training Related to Specific TE Projects below.
"Travel to an industry meeting where training was one of several topics of discussion would not qualify for use of core funds. However, core funds could be used to support employee travel to and from a training or professional development program designed to improve the employees' skill, knowledge, or abilities in surface transportation management or a technical discipline, i.e. travel to a National Highway Institute or other industry training and professional development program."
Because most activities under the National Scenic Byways Program are eligible TE activities, TE funds also may be used for surface transportation workforce development, training, and education benefiting the National Scenic Byways Program.
TE funds also may be used for surface transportation workforce development, training, and education benefiting historic preservation and archaeological planning and research as they relate to eligible TE activities.
If an employee is working on a specific eligible TE project, the cost of training for that employee that is necessary and reasonable for the employee to perform work on that project may be charged to the TE project. See OMB Circular A-87, Attachment B, Items 42 (Training costs) and 43 (Travel costs). Because this is a project cost, the employee's salary while at the training also is eligible. The Federal share for training related to a specific TE project is the same as the overall TE project.
|This section contains copies of current policy guidance memos as they exist at publication of this guidance. Links to these documents or their replacements are revised as needed. See also Other Related FHWA Guidance and Information. [This note revised November 19, 2009.]|
Eligible Transportation Enhancement Activities (from Memo of April 24, 1992) [link added July 18, 2011]
This Memo interpreted the original intent of the Congress in establishing the Transportation Enhancement (TE) activities in the Intermodal Surface Transportation Efficiency Act of 1991:
(1) The TE Activities are an exclusive list.
(2) A project may include a mix of eligible activities.
(3) Activities not explicitly on the list might qualify if they are an integral part of a larger qualifying activity.
(4) Environmental analysis, project planning, design, land acquisition, and construction activities necessary for implementing qualifying transportation enhancement activities are eligible for funding and may be counted toward the 10 percent requirement.
Request for Approval of Exceptions
TE projects are exempt from having to be located within the right-of-way of a Federal-aid highway.
Section 4(f) Policy Paper - March 1, 2005
NOTE: The Section 4(f) Policy Paper, March 1, 2005, supersedes Interim Guidance on Applying Section 4(f) on Transportation Enhancement Projects, August 22, 1994.
Framework for Considering Motorized Use on Nonmotorized Trails and Pedestrian Walkways, February 26, 2008
FHWA developed a framework for determining when to permit an exception for motorized use on nonmotorized trails and pedestrian walkways under 23 U.S.C. § 217(h)(5).
Historic Bridges: Interpretation of Title 23, Section 144(o) Reasonable Costs Associated With the Demolition of Historic Bridges
This memo explains about a conflict in statutory legislation between the use of Bridge funds and TE funds for historic bridge preservation.
Workforce Development, Training, and Education[added July 14, 2011]
NOTE: The Workforce Development information was issued by the former FHWA Office of Professional and Corporate Development, but that Office's website has been removed. The Workforce Development program is codified in 23 U.S.C. 504(e), therefore the information remains in effect. The information is posted under the Transportation Enhancement Activities as a courtesy to provide the information for reference purposes.